Longtime poverty writer and television producer, Becky Johnson of Santa Cruz, Ca. shares her essays, videos, and favorite articles on the issues of the day from the faux Swine Flu pandemics, to saving lives and billions with breast thermography. From smoking bans to the Israeli-Palestinian conflict, try to keep up with Becky on Twitter at https://twitter.com/BeckyJohnson222

by Chris Snowdon

London, England -- With Britain vying for pole position in the tobacco control freak race with its zany plain packaging/display ban proposals, reigning champion California is having to raise its game. Can it rise to the challenge? Of course it can...

Smoking on open patios and balconies will be prohibited for the 18,500 apartment and condominium residents in Laguna Woods if the City Council on Wednesday gives final approval to an amendment to the city's smoking ordinance.

Yes, that's an outdoor smoking ban on your own private property. And even that doesn't go far enough for the illiberal goof-balls of this clown state.

The council also considered prohibiting smoking inside homes unless all windows and doors of the units are closed, but tabled that provision for further study.

"We are not yet ready to regulate smoking within houses," said Mayor Pro Tem Cynthia Conners.

Don't mistake that for 'we don't want to' or 'we would never'. They're just not ready yet. The baby steps of prohibition have got them this far, so why start taking bigger strides now? There's plenty of time for smoking bans in the home, don't you worry.

The Santa Cruz County Board of Supervisors voted 4-1 Tuesday to require retailers to obtain a license to sell tobacco, joining dozens of other communities statewide.

The excuse urgent justification for this policy is to reduce youth access to cigarettes.

The county says a recent survey demonstrated county retailers' poor compliance with laws prohibiting sales to those under 18. "It shocked everybody," said Bob Kennedy, the county's environmental health director.

It would be interesting to learn where this shocking study came from and who funded it but, I guess we should all be thankful that this licensing system is going to stop retailers selling cigarettes to kids, um, somehow. How exactly will that work again?

The new license applies to all of the county's 104 retailers who sell cigarettes, and will cost $318 annually.

So you can't sell cigarettes to kids unless you can scrape together $318 a year? That should stop 'em.

That $318 is the whole point, of course. It won't stop shop-keepers selling tobacco to under-18s but it will penalise tobacconists in the hope that some of them will say 'screw it' and stop selling cigarettes. Places that don't sell many cigarettes will do that, for sure, and prohibition takes one step closer.

The whole point of the exercise is to make selling cigarettes less profitable and make buying cigarettes more inconvenient. That's why it's been on the anti-smokers' agenda for some time. It's got sweet nuthin' to go with youth access which, as ever, needs to be addressed with enforcement. Speaking of which...

The county hopes to run at least one compliance check on businesses per year, with first-time violators facing a 60-day suspension of tobacco sales.

Those who are cited four times over five years can lose their tobacco licenses.

If stopping kids buying tobacco was really these people's concern, they'd be doing all this already. They don't need to charge store-owners several hundred dollars a year for a junk license before they start enforcing the law. Or is the State of California seriously claiming that it doesn't already get enough money from cigarette taxes and the Master Settlement Agreement to afford doing a measly one check a year?

And finally, back down the coast in Los Angeles, Bernard Parks is doing his stuff. Parks is a supremely stupid man with totalitarian tendencies who believes that "secondhand smoke is the number one cause of preventable health disease in America". He also believes that "inhaling secondhand smoke is more harmful than actually smoking". If this is the kind of bumpkin that gets elected (and re-elected) in California these days, then it's no wonder the State has become a bankrupt citadel of intolerance.

Parks' previously efforts to turn LA into a bully state include an outdoor smoking ban in the city's streets and he has now turned his beady eyes—as they all do sooner or later—to food. As the video from Reason shows below, he's going to ban restaurants he doesn't like. The fact that LA residents obviously do like them doesn't enter into it.

With San Francisco banning Happy Meals and New York putting a tax on soda (thanks to Michael Bloomberg, another smoking ban obsessive who took the 'next logical step'), this is only the start of the war on food. For the time being, Bernie Parks is only going after the fast food joints. As they might say in nearby Lacuna Woods: "We are not yet ready to regulate eating within houses."

Saturday, March 19, 2011

The Honorable JOHN GALLAGHER, Presiding JudgeED FREY, defendant and attorney for the defense,Assistant District Attorney, SARAH DABKOWSKI, for the prosecutionPeace Camp Six defendants, COLLETTE CONNOLLY, ARTHUR BISHOFF,

ELIOT ANDERSON, GARY JOHNSON, and ED FREY were present.CHRISTOPHER DOYON, also a defendant was not present

THE HEARING BEGINS AT 3:50 PM

JUDGE JOHN GALLAGHER: Mr. Frey. I believe you are representing everyone on the motion to dismiss. Is that true?ED FREY: Yes it is.JUDGE JOHN GALLAGHER: Is there anyone else here in the courtroom waiting for amatter to appear other than people represented by Mr. Frey? (silence)Okay. I think we can take your matters now. I'll call them for the record.So the matters that are remaining are the People v Eliot Mathew Anderson et al. Is EliotMathew Anderson present?

ELIOT ANDERSON: Yes, sir.JUDGE JOHN GALLAGHER: Perhaps all of Mr. Frey's clients could sit in the first row nearthe bailiff station. If others sitting there would kindly vacate that area.Gary Allen Johnson is present. Eliot Mathew Anderson is present. Mr. Frey is present.Christopher Mark Doyon?

ED FREY: Is not here, your HonorJUDGE JOHN GALLAGHER: Collette Marie Connolly is present. Good afternoon.Arthur William Bishoff is present.JUDGE JOHN GALLAGHER: Mr. Frey, Can you tell me anything about ChristopherMark Doyon's status?ED FREY: No. Mr. Doyon lives in a place that is very inaccessible, he lives about 20miles out of town, and has no telephone. I don't know why my client is not in court.

JUDGE JOHN GALLAGHER: All right. Given that you are his counsel and you'rehere, I am going to excuse his absence for the purposes of this hearing. And who ishandling this for the people?DA SARA DABKOWSKI: Sara Dabkowski, representing the people

JUDGE JOHN GALLAGHER: Good afternoon to all the peoplerepresented by Mr. Frey. I'm sorry you had to wait all day tohave this happen. Or perhaps all afternoon. I have read the moving papers, the opposition, andthe reply. And I will hear your arguments at this time. Mr. Frey it's your motion.

ED FREY: Thank-you, your Honor.JUDGE JOHN GALLAGHER:How much time do you think you need?

(voices: he's not present)All right. Then if he's not present then I don't need to deal with that request. Mr. Frey,your other request?

ED FREY : That it be recorded aurally.JUDGE JOHN GALLAGHER:: "It IS being recorded by the court's recording system.And that will be the only audio recording. If you want a copy that will be the official copy.ED FREY: Very good.JUDGE JOHN GALLAGHER: Ms. Dabkowski, how much time do you need?DA SARA DABKOWSKI: I guess it will depend on if the court would like me toaddress the specific issues: I'd say 10 minutes.JOHN GALLAGHER: Perhaps, since to some extent this is an evidentiary hearing becauseMr. Frey has asked me to address a number of items for judicial notice. Why don't we firstaddress the issues of judicial notice. Mr. Frey, why don't you go forward.FREY: Okay. The first is request for judicial notice is that the fact that this courthouse is aplace...that's traditionally been a location for public protest.

JOHN GALLAGHER: Do the people have a position on this?DA SARA DABKOWSKI: Your Honor, I thought the type of fact... it's not the type of factsthat would be taken under judicial notice in the evidence subsection 452, facts that one wouldtake judicial notice of, items of common knowledge, like what kind of (unintelligible) therewould be on a particular day. Such as what day of the week is Feb. 14th is on. I don't thinkit's the type of fact that the court can take judicial notice of.ED FREY: Your Honor, I believe that we cited not section 452 for that, but we cited section452 for that fact, but section 451 subdivision F

JUDGE JOHN GALLAGHER: "Facts and propositions of generalized knowledge that areso universally known that they cannot reasonably be the subject of dispute."

ED FREY: Yes.

DA SARA DABKOWSKI: I'd have the same argument, that that is not something that isgenerally universally known. It is a proposition or opinion. It could be disputed.JUDGE JOHN GALLAGHER: Mr. Frey, your response?

ED FREY: Yes. Actually 452 (g) is probably the most appropriate : "Facts andpropositions that are such common knowledge within the territorial jurisdiction ofthe court they cannot reasonably be the subject of dispute."JUDGE JOHN GALLAGHER: All right. Is your response any different to thatsub- section Ms. Dabkowski?DA SARA DABKOWSKI: No, your Honor.JUDGE JOHN GALLAGHER: "Mr. Frey, I've lived in this community for roughly31 years, and if I had been asked to say whether I thinkthat is a fact, that that is indisputable under any of these sections, even though I've beencoming to this courthouse for 32 years, my personalopinion is "no". I know it's not my personal view that supports whether or not judicialnotice should be given. But I did want to tell you thateven as from someone who's been coming to this building for nearly 32 years, I wouldnot have found that that is true.ED FREY : Can we think about all the times, for example, that the SEIU would holddemonstrations here? And in front of the stairway overin front of the high rise building. Then there's all the public groups that hold meetings andpublic demonstrations here. SAM FARR came hereand spoke . It's a place where the public has gathered. I've been to about thirty or so myselfat this location. "JUDGE JOHN GALLAGHER: Your specific request is that the County courthouse andcivic center of the City of Santa Cruz, City Hall....you mean city hall, that complex?ED FREY: Yes.JUDGE JOHN GALLAGHER: Have been used as sites for public gatherings, publicdemonstrations , for many decades and are still so used.ED FREY: YesJUDGE JOHN GALLAGHER: You're not asking me to say that this is a frequentoccurrence, just that these occurrences have happened in these two locations for manydecades continuing till today. Is that a fair statement?ED FREY: Yes.Now Ms. Dabkowski, now that I'm focusing on that particular language, do you haveanything to add?DA SARA DABKOWSKI : I guess I would add that Judicial notices are irrelevant,since what we are arguing today is whether or not 647 (e) is valid or invalid on its faceand this particular judicial notice does not go to the argument and is irrelevant.JUDGE JOHN GALLAGHER: Mr. Frey, what is your response to that?

ED FREY: Well, as I understand the demurrer process, and that is essentially whatthis is as counsel has pointed out. Evidentiary facts...any facts are not permissible.However, the exception is if facts are taken by judicial notice.

JUDGE JOHN GALLAGHER: That is the rule of law and that I accept that it isaccurate.ED FREY: It's relevant especially to our first amendment argument of course.JUDGE JOHN GALLAGHER: I'm going to grant the request for judicial noticeas stated on number one. I'm not ruling whether that evidence is admissible on themotion to dismiss.

ED FREY: "The second request for judicial notice is "the defendants purpose andwhat they did was, well one of their purposes was, to protest the Sleeping Ban. Andthat again was under section 452 (g).JUDGE JOHN GALLAGHER: "I'm denying that request for judicial notice. I'mguessing that Ms. Dabkowski, you won't want to talk me out of that decision?

DA SARA DABKOWSKI: No, thank you.

ED FREY: "The last request I have is one of those general propositions. That it is safer tosleep in group when you are sleeping outside than it is to sleep by yourself."JUDGE JOHN GALLAGHER: "I will deny that request for judicial notice. I assumethe people have no objection. Are there any other evidential matters before we go to arguments?ED FREY: No.DA SARA DABKOWSKI: Your Honor, I also would object to Mr. Frey's declaration.JUDGE JOHN GALLAGHER: Is Mr. Frey's declaration attached to something?DA SARA DABKOWSKI: I believe it was attached to the motion that he filed.ED FREY: It is filed as separate document, I believe. It was filed contemporaneouslywith our opening brief.(long silence)

JUDGE JOHN GALLAGHER: I'm looking over all the files and I can't find it.ED FREY: It may be in Mr. Anderson file as that is the case that it was filed under.JUDGE JOHN GALLAGHER: do you have a copy?

ED FREY: I do. (gives Judge his copy)

JUDGE JOHN GALLAGHER: Let me refresh my recollection here. Mr. Frey, this would not besomething I could take judicial notice of in the demurrer process. This kind of submittal is notacceptable, traditionally at least. So do you have any response to that?

ED FREY: No, I think in general counsel is right. We are challenging the statute on its face andtherefore to bring in new facts would not be appropriate. We have to just take just the statute itself.JUDGE JOHN GALLAGHER: I will treat this as an evidential objection by Ms. Dabkowski. AndI will sustain that objection and not consider the contents of the declaration or the attachment orany other references to the attachment. Any other evidential issues?

DA SARA DABKOWSKI: No, your honor.

JUDGE JOHN GALLAGHER: Let's go for it.

ED FREY: May I request of the court whether you have a tentative decision? Or if the courtwants to hear arguments on a particular issue vs a request for others?JUDGE JOHN GALLAGHER: I don't have an opinion and I don't have a request for issues.

ED FREY: The point I would make first, your Honor, is that even though The Ninth Amendmentto the United States Constitution has hardly ever been cited by the Supreme Court of the United States.The same can be said with regard to that portion of article 1 section 24 in the California State Constitutionthat says basically the same thing the 9th Amendment says, and that too has not been a subject ofappellate review or application.

But we are faced with is applying the law set out in the Constitution directly in this case withouthaving to examine how other appellate judges have treated it. Obviously, there is almost no historythere. I don't know if the court had a chance to review the book I mentioned about the 9th amendmentin my briefs?

JUDGE JOHN GALLAGHER: If you did not submit it for me to review, I did not review it.

ED FREY: But I do cite several points made in that book about the 9th amendment that the purposeof the 9th Amendment, was that the authors of the Bill of Rights were concerned that if we list certainrights then are judges going to assume that those are the ONLY rights available? And that was preciselywhat the drafters and the authors of the Bill of Rights did not want to happen. So that was the purpose ofputting it in --the 9th amendment in. To say clearly to everyone, especially the judges, that theenumeration of these rights above --such as freedom of expression, freedom from unreasonable searchesand seizures, etc.--- are not, that list was not meant to exclude other rights that are retained by the People.Rights which obviously are too numerous to mention, and too obvious to mention. As I said, the right tobreathe was not put into the Constitution. Because it's pretty obvious to everyone, if you can't breathe,you can't live. I think the same thing can be said about the right to sleep. If one cannot sleep one will notlive very long. One cannot survive without sleeping. And that the right to sleep has to be one of thoseunenumerated rights.

JUDGE JOHN GALLAGHER: "Did the founding fathers side to protect any rights associated withthe physical process of living?

ED FREY: Not to my knowledge. I don't believe so. Of course the right to freedom of speech, freedom ofreligion, unreasonable search and seizure, the right to counsel, the right to jury trial. It seems that none ofthese have anything to do with bodily functions.

JUDGE JOHN GALLAGHER: Does that tell us something?

ED FREY: Yes, it tells me that those bodily functions are so ingrained in human life, so necessary tohuman life that if one were to apply a modicum of common sense, one would say we need not list thesethings.JUDGE JOHN GALLAGHER: Isn't it also a reasonable assumption that they were protectingpolitical rights but not physical rights?"

ED FREY: Well I think they were reserving all sorts of rights that were not listed, not specifically listed.But I certainly couldn't give a catalog of what I would surmise to be what those rights might be. But the rightto sleep, I certainly would say is included in there, because, as I said, if you can't sleep you can't live.JUDGE JOHN GALLAGHER: Is the right to pursuit of happiness anywhere found expressly in the Constitution?

ED FREY: Not in the United States Constitution, but in the California Constitution, it's right there:the right to pursue and obtain happiness. That's another broad set of rights, article 1, section 1 of the California Constitution that is extremely broad, and yet it has to mean something. It means, really,that the people retain the right to do whatever they want to do so long as they don't interfere in someoneelse' rights.JUDGE JOHN GALLAGHER: the "Right to pursue happiness" was found in other documents aroundthe Revolutionary period. Were they not?

ED FREY: In the Declaration of Independence but not in the United States Constitution. But in theCalifornia State Constitution.JUDGE JOHN GALLAGHER: Don't you see the dichotomy there? By the time the Declaration ofIndependence they were expressing that right, but by the time they got around to writing the Constitution,they were focusing on political rights, and not more personal or physical rights.

ED FREY: Yes. I believe that's an accurate statement. The California Constitution, the drafters of that...actually it was adopted by the voters, I believe, in the State of California in 1874. They decided theywanted to put it in. So we have that right as Californians. We have much greater rights as Californiansunder the California Constitution than Americans generally do under the United States Constitution.JUDGE JOHN GALLAGHER: But even in that much broader document, voters did not choose toenumerate the rights you're seeking here. Is that correct?

ED FREY: Yes, it's correct. But again, for the same common sense reason. They wouldn't put in"the right to breathe" because it would seem silly. Everyone has the right to breathe. It's kind ofabsurd to put that in a legal document.

JUDGE JOHN GALLAGHER: I didn't mean to steer you off course. I just had some questions.Please continue.

ED FREY: So I believe what we are talking about here is precisely what the drafters of the Bill of Rights had in mind. And that is the right to do something that they weren't prepared to list in their verybasic list of political and civil rights listed in the Bill of Rights.

Then with regard to our second basic set of rights under due process of law. The 5th and 14th amendmentsto the United States Constitution, generally that the law that we're dealing which here which outlaws"lodging" whether it be on public or private property, at any time or at any place. There's no limitationson it, there's no definitions on it. A citizen reading that law would have no clear idea whatsoever what ispermitted and what is prohibited. "Lodging" in general, means, as I have always understood the word,living in a particular place. You are lodged in a house, you're lodged in a trailer. You're lodged at a big...Yosemite Lodge. To me it's always implied a structure. Unless you're using it in the other term as whenan object gets "lodged" between two rocks, but that's not the sense in which the statute speaks, I don't think.Unlawful lodging means a person is in a place where they are not supposed to be. How can a person knowwhat they can or can't do just by reading it? Your Honor, as I pointed out in my opening brief, "lodge" has been used very specifically for variousstatutory purposes in California and it is always surrounded with the rights that go along with real propertyoccupants; tenants rights; lodger's rights. That sort of thing. Even, as I point out, if you are considered a"lodger" because you rent one room in a home, in a single family residence that is occupied by the owner,you are then considered to be a "lodger." You can be ousted by the police from that, but you have to have 7 dayswritten notice before that can happen. It's one of the only cases where under landlord/tenant law, an unlawful detaineris not necessary to dislodge someone from real property. You can just call the police and have them come.In fact, if the policemen come to oust you, one of the questions they will ask the owner is, "Have you given thisperson 7-days notice in writing?" If not, if the answer is "no," the policeman will go away. There is no right ofthe owner to dislodge the person without having first given that 7 days written notice.

So reading this entire body of California law, a citizen could say, if I'm just sleeping in front of the courthouse,I'm not lodging. Because "Lodging" has always implied that you had permission. That you have some sort ofwritten contract with the owner or the person who is in control of the property. Here we had no contract.We just came and we slept. We didn't ask anybody first.

So we're not lodgers. Or we don't think we are lodgers and the statute doesn't make it clear. And because that's so,that's one reason the law should be held void. Another basic reason it should be held void for vagueness is, of course,that Sheriff's and the police have no guidelines for them to know what to do and what not to do, and who is breakingthe law and who isn't breaking the law. It opens up the situation to the possibility of arbitrary and capriciousenforcement and that is precisely the most important factor that the United States Supreme Court has held,when present, to find the statute void for vagueness.

JUDGE JOHN GALLAGHER: You don't think the statutes acknowledges the permissionelement in the standard for "lodging?"

ED FREY: It says "without permission" but what does "lodging" mean? Lodging implies astructure--it imply s a lodgeor it implies.... If you are walking down the sidewalk and you're really tired and want to sitdown and rest, that doesn'trequire permission, generally.

JUDGE JOHN GALLAGHER: But doesn't the statute provide definition to that when itsays "building, structure, vehicle, or place?"ED FREY: No. That is so broad in includes every square inch in the State of California. "Every place" in California. Every place.It could be on a sidewalk. It could be in a park. It could be in front of the Courthouse.

JUDGE JOHN GALLAGHER: Why should any place be unprotected?

ED FREY: It's not that any place should be unprotected. What we need here are reasonable guidelines. For example,if the County authorities felt it was not a good thing to have people sleeping here at night, they could write a regulationor an ordinance that says "not here" "not permitted here" but they can't prohibit it everywhere in the county. Because thepeople have a right to be here, and they have the right to remain here as I pointed out in the reply brief, there is a statutein California which tries to answer the dilemma that public welfare authorities would have, "If a person is homeless,how do we know where he resides?" Well, that statute says he resides where ever he remains unless he's called away.So anyone who remains in the County of Santa Cruz, has a right to remain here....but this statewide statute takes awayhis right to sleep while he remains here."

JUDGE JOHN GALLAGHER: Your time has been exceeded. But please take a minute to wrap up if you like.

ED FREY: I know I'm asking the court to do something that is unprecedented. But that's just in the nature of things.We have these very broad Constitutional provisions. The fact that they've not been applied or referred to by other judges,especially other appellate judges doesn't mean we can ignore them. Those are the basic rules that the court goes by, asthe court well knows. The Constitution must be applied. You can't just say those are just pretty sounding words.Those words mean something. The right to pursue safety. The right to pursue privacy. The right obtain privacy.The right to obtain safety. These words have to mean something and given meaning. And in this context, the right topursue happiness, the right to pursue privacy has got to include the right to sleep. Because otherwise, your lifeis ruined if you can't sleep.

ASSISTANT DISTRICT ATTORNEY DABKOWSKI gives her summation

DA SARA DABKOWSKI: Your honor, Mr. Frey is correct that this is an unprecedented request he is making. And that there is no law which supports granting his untimely request. Let me point out that this is an untimely motion that is being treated like a demurrer. A demurrer is something that must be filed before a plea is entered. All defendants have entered pleas. And if a demurrer has not been filed prior to a plea, then all rights to a demurrer are waived. And that's something that's found in the penal code. And it is untimely to proceed as a demurrer. And that would be the proper motion or format to address these particular issues. Particularly the question of whether 647 (e) is void on its face. Because that is something that a demurrer definitely asks, whether the charge or code section is valid and addressing the code section on its merits and asking if 647 (e) is unconstitutionally vague.

Case law supports that it is not unconstitutionally vague. It does put people on notice. As case law says, it does have to "provide sufficient definite guidelines for a potential violator and to the public and sufficient definite guidelines to law enforcement" so there is not arbitrary enforcement of the particular section. In this case, there is sufficient information to give notice that it is illegal To 'lodge' somewhere you don't have permission. To "lodge" somewhere, it's a common word. It does put people on notice. It's a word that can mean that you are a lodger at a motel, spending the night, staying the night. Or as Mr. Frey pointed out, it can have a more permanent meaning. That you are a "lodger" in someone's home. But it is a common word that puts people on notice that they can't lodge, can't live, can't stay the night, can't sleep somewhere, can't set up roots somewhere if they don't have permission. So it's not unconstitutionally vague on its face as written. To lodge at a hotel, to live, stay the night, sleep somewhere, set up roots where they don't have permission.

So it is not unconstitutionally vague. Particularly because in this case a person can ask themselves, "What do I have permission to do here?" A person coming up the courthouse grounds at night should ask, what is it I can do here? I can't file a court case right now since the courthouse is closed. And I should know that no person gave me permission to sleep here.

And so there are guidelines to put the public on notice, to put law enforcement on notice, and put juries how have to decide on such things on notice. It's not unconstitutionally vague. It uses common words which have common meanings. No law is going to be absolutely perfect where every single time everyone has the exact same idea but the point it, it has to provide sufficient and definite guidelines, which this particular statute does.

Turning to the 9th amendment. There is no ninth amendment violation right here. There is no constitutionally protected "right to sleep." It's not a recognized right under the US Constitution nor under the California State Constitution. while sleep may be a need and a very important need, and in no way are we down-playing the importance of the need, and we're not unsympathetic to the plight of a lot of people, but here in Santa Cruz, homelessness is a pervasive and common issue here that we are all as a community dealing with. it's not a right at this time. It is not recognized as a right. There is no authority to support it. But there is no Ninth Amendment violation in this case. Nor is there any particular section of the California State Constitution either cited by counsel or otherwise that shows that there is any California violation in this case.

Finally, in Counsel's case, Counsel raised the issue that defendants' first amendment rights may have been violated. But the defendants were not cited for their speech. They were not being punished for any speech. They were cited for conduct after they were warned to leave. This is not a punishment on speech. 647 (e) on its face is content neutral. It doesn't in any way target particular types of speech or types of expressive conduct. It does have reasonable time, place, and manner regulations because 647 (e) just applies to areas where you don't have permission. As the cases we cited, it's reasonable for the government to maintain the safety, maintain the cleanliness of common places. That is a government interest that they can protect. The cleanliness of public spaces. They have a right to have reasonable time, place, and manner restrictions put on even expressive behavior and expressive speech. So I think it is reasonable time, place, and manner restrictions that you can't lodge in places where you don't have permission.

Is there anything else which the court specifically would like me to address?

JUDGE JOHN GALLAGHER: I don't think so. Mr. Frey, would you like to reply?

ED FREY'S FINAL ARGUMENTS

ED FREY: Just briefly, your Honor. When the People say there is no law that supports our motion, I'm sorry, but I have to basically disagree in a very arduous manner. The law that supports our motion is very strong. It's right, directly in the Constitution. It's not law that appellate judges have established, but it is law that is right in the Constitution. To say that "there is no law.." is simply inaccurate. With regard to providing guidelines, the only guideline is that counsel mentioned is the one that says you have to have permission. that means in effect that the requirement of getting consent from someone, then if you are so poor you can't afford a motel room, you have no where in the State of California where you can go and legally sleep. That is simply and morally unacceptable.

JUDGE JOHN GALLAGHER: Thank-you Mr. Frey and Ms. Dabkowski. You both made well-prepared written and oral presentations.

GALLAGHER'S RULING

JUDGE JOHN GALLAGHER:"It's my intention to deny the motion to dismiss. I think the People make a good point when they say that "Sleeping is not a Constitutionally protected activity." And that this statute provides a reasonable time, place, and manner restriction. I am not unmindful of the difficult situations of people who don't have the assets or means to purchase lodging, don't have the means to purchase a campsite. And what it means to buy accommodations in a given area. But I don't think it was the intention of the people of California amending the Constitution to say that someone could sleep on any piece of public property or private property without permission as part of the pursuit of happiness under the State Constitution. I'm even more comfortable that the founders of the United States Constitution did not envision a "right to sleep" anywhere when they were drafting the United States Constitution's Bill of Rights and I think I followed that with my argument that that is a document that protects political rights and not physical rights and those who drafted the Bill of Rights did not envision to allow anyone to sleep on ANY public or private property without permission.

They did not envision an ingrained "right" to sleep anywhere when they were drafting the Constitution. As I suggested in my discussion that that is a document that highlights political rights and not physical rights.

I appreciate that as a society we have not found a good solution to the terrible economy we have in this State and in this country and we haven't for quite some time. But the People of the State of California and the people who wrote the Constitution did not intend it to allow the right of the people to sleep anywhere they wanted without permission from the landowners. I have to deny this motion to dismiss. So I'd be happy to set consistent dates as counsel wishes. Do the people move to intend to join these cases?

Saturday, March 5, 2011

One of the protesters at Peace Camp 2010 lies down for the nightliterally on the front doorstep of the Santa Cruz County Courthouse.Photo by Becky Johnson August 29, 2010

by Becky JohnsonMarch 5 2011

Santa Cruz, Ca. -- Yesterday, the newly-elected Judge, Rebecca Connolly faced her first decision regarding the case of Linda Lemaster and the Peace Camp Six. All had been arrested under the State's draconian 647 (e) statute which outlaws "illegal lodging" with the word "lodging" undefined.

Representing Linda Lemaster, Public Defender, Mark Garver had submitted a brief and gotten a response to his brief, at a hearing called a demurrer. Connolly said she'd reviewed both briefs. Garver began by addressing the two cases raised in the Prosecution's brief, both of which addressed camping ordinances. What follows is my version of what I heard, based on my notes and conversations I had with Ms. Lemaster afterwards.

MARK GARVER: In the cases cited by opposition, Joyce v City of San Francisco, and in the People v Scott, in both cases, the statute further defines the behavior addressed. 647 (e) is vague and overbroad. What does it mean to violate it? Does it mean or specify lying down? In Joyce, it states specifically that "merely lying down or sleeping in a bedroll does NOT constitute a violation."

In the People v Scott, it does define "camping" as well. " Camping" is defined as residing or resting in a park for long repetitious periods of time. Your Honor, this is a tangible definition.

Under PC 647 (e) it's not clear if a person violates the statute after one-half hour, or 10 minutes, or after a period of days. Even in the language of the courts on ruling on the W. Hollywood (camping) ordinance, the Justices said "If the City of W. Hollywood had not provided a definition of "camping" they would not have found their ordinance constitutional."

But here, the opposition expects us to merely substitute the word "lodging" for "camping."

What's illegal is using that claim as a living accommodation sufficient to provide guidelines to police to enforce what lodging is. Can we tell what "lodging" is after 5 minutes? Ten minutes? One-half hour? Is it for lying down? Is if for sleeping? This lends itself to arbitrary enforcement by police, or so said the Hawaii Supreme Court when they reviewed the ordinance.

DISTRICT ATTORNEY MCKINNEY: I just saw this case today so I'm not going to respond to those arguments.

MARK GARVER: The Hawaiian decision was different from the Scott decision in that it was "camping" and it did have a definition of "camping." Still it was found vague for other reasons. It defined what "living accommodations" were. It said that's "remaining for a prolonged period not for recreational use." Here we have no definition of "lodging."

And if "lodging" can be defined as someone who stands, sits, or publicly assembles in a protest, it can be used to disperse that protest. I am challenging this ordinance on its face as well as as applied.

DISTRICT ATTORNEY MCKINNEY: In the Hawaiian case, I haven't had the chance to review it all but I don't think you should give it much weight. In Joyce, it details a 647 (i) which is virtually identical to (j) --and they found it was NOT unconstitutional. As for over-broad or unconstitutional, that was not addressed in the counselor's response.

JUDGE REBECCA CONNOLLY: I can't believe this statute is vague. Regarding Constitutional issues, I don't think it's so vague it would influence the 1st amendment. How about the ruling in Scott where they said that "If they'd had a definition...?"

DISTRICT ATTORNEY MCKINNEY: It said it "might" be unconstitutional. We all have a common sense understanding of "camping." We all have a common sense notion of what "lodging" is.

JUDGE REBECCA CONNOLLY: I find the statute as written is sufficient on its face.

As to the citation, it's sufficient As to the citation, it's sufficient to address the charges -- it says it's illegal to "lodge" --with respect to 647 (e), is not void for being over-broad. I'm going to rule to deny the demurrer.

With respect to this case, Judge John Gallagher is handling all the camping cases.

MARK GARVER: So for all purposes that means Department 2?JUDGE REBECCA CONNOLLY: Yes. Judge Gallagher. Next hearing March 11th at 8:30AM., Dept. 2. I want to thank everyone here. It was very well argued by counsel. Thank-you for your attention to detail. I'll assign it to Dept. 2 in Judge Gallager's court.

About Me

Longtime Santa Cruz homeless advocate, Becky Johnson has written for Street Spirit, produced "Bathrobespierre's Broadsides: Civil Rights for the Poor" and has lobbied for homeless civil rights with HUFF, Homeless United for Friendship & Freedom, and produced her own television show "Club Cruz" which covered local and poverty issues. Currently Ms. Johnson is one of the founders of Peace Camp 2010 located on the courthouse steps until the City of Santa Cruz repeals the Sleeping Ban.